Maurizio Borghi: Hegel on intellectual property (and why it matters)

The “personality theory” that the European Court has embraced in Infopaq has seemingly no connections with the two poles of the Anglo-American copyright discourse, namely the instrumentalist-utilitarian approach and the natural rights theory. It is known to be “loosely derived from the writings of Kant and Hegel” and although sharing some common features with Lockean natural right theories it is thought to be associated with systems of moral rights. The aim of this paper is to explore the following question: can the “personality theory”, as recently emerged from oblivion in the EU, contribute to set off a rethinking of copyright principles beyond the current polarized understanding? To answer the question, an attempt will be made to draw at the sources of the theory in the philosophy of Hegel. The aim is to contribute to set the conditions for a future genuine and free confrontation between copyright doctrines, beyond the constraints of the current dichotomy “utilitarianism vs. natural-rights”.